Bryant v. Com., 750183
| Decision Date | 01 December 1975 |
| Docket Number | No. 750183,750183 |
| Citation | 219 S.E.2d 669,216 Va. 390 |
| Court | Virginia Supreme Court |
| Parties | David Joe BRYANT v. COMMONWEALTH of Virginia. Record |
Henry A. Whitehurst, Christiansburg (Gillis, Whitehurst & Obenshain, Christiansburg, on brief), for plaintiff in error.
Stuart Bateman, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.
David Joe Bryant was found guilty by a jury of rape and was sentenced to serve five years in the penitentiary. We have limited his appeal to a consideration of the action of the court below in refusing to grant an instruction tendered by the defendant.
The background of this case is that the victim, age twenty-one, married, and a resident of Roanoke, frequented a roadhouse known as the Christiansburg Grill in Montgomery County during the early morning hours of May 19, 1974. The victim talked with several men about the possibility of one of them taking her home. She finally accepted a ride with the defendant Bryant and his friend, Jerry Carden. It was during that ride that she is alleged to have been raped by both men. It suffices to say that while the testimony of the witnesses was in conflict, and the case was properly submitted to the jury, the evidence of defendant's guilt was not overwhelming. The defendant did not deny the act of intercourse with the prosecutrix but claimed most strongly that the act was with the consent of the victim and that no force was necessary or was used.
We observe here, as we did in Dunn et al. v. Strong et al., 216 Va. 205, 207, 217 S.E.2d 831, 833 (1975):
'(T)he case is very close upon the facts and is one peculiarly for a jury. As was said in Virginia Ry. & P. Co. v. Burr, 145 Va. 338, 348, 133 S.E. 776, 779 (1926), 'It is a case, therefore, in which the instructions should have been most carefully drawn . . .".
The Commonwealth was granted six instructions, all being of a type usually granted in rape cases. The court granted the defendant two instructions, one dealing with the burden of proof and the other with the presumption of innocence. Among defendant's four instructions which were refused was Instruction A--1, which reads as follows:
'The Court instructs the jury that if they believe from the evidence presented that (victim's name), a married woman, over the age of 21 years, married, a resident of Roanoke, Virginia, after having arrived in Christiansburg, Virginia, at 12 o'clock midnight, unaccompanied by her husband thereafter formulated a plan in which she solicited or offered to engage in voluntary sexual intercourse with Larry Smith and Sammy Epperly in return for transportation to Roanoke, Virginia; thereafter, after having engaged in voluntary sexual intercourse with Sammy Epperly and Larry Smith wherein of her own free will she disrobed and placed herself in a parked automobile; thereafter returning to the Christiansburg Truckstop, a well-lit area, where other persons were present including a friend and at a place where a public telephone was readily available, without attempting to telephone her husband, family or police; and again thereafter solicited or offered voluntary sexual intercourse to David Denton in return for transportation to Roanoke, Virginia, which was refused; and again thereafter offering voluntary sexual intercourse to Joseph Ray Bonds in return for transportation to Roanoke, Virginia, which was refused; and having failed in her efforts to solicit transportation in return for voluntary sexual intercourse offered the same to Jerry Carden and David Bryant in return for transportation to Roanoke and prior to leaving the Christiansburg Truckstop with David Bryant and Jerry Carden showed proof of her age upon request; thereafter entered the automobile voluntarily; and at a later time voluntarily entered the rear seat of the automobile with Jerry Carden; thereafter engaging in voluntary sexual intercourse with him; and subsequent to that act of voluntary sexual intercourse, engaged in sexual intercourse with David Bryant after having voluntarily removed her clothing and making no complaint as to any sexual activity, you must find David Bryant not guilty.'
We agree with the Attorney General that this instruction...
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...affirmative duty properly to instruct a jury about the matter." Id., 241 Va. at 250, 402 S.E.2d at 681 (citing Bryant v. Commonwealth, 216 Va. 390, 393, 219 S.E.2d 669, 671 (1975); Whaley v. Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558 (1973)). In both cases relied upon by the Cou......
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Gaines v. Com., Record No. 0839-01-1.
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